#41 - Industrial Action - Labour Law

Labour Law Reading Session 7

INDUSTRIAL ACTION

1. General Overview

Collins, Ewing and McColgan, Chapter 9:

• Laski argued that strikes should be possible for political as well as industrial action, and that it wasn’t really possible to distinguish between the two e.g. what about strikes calling for legislation governing hours or working conditions- this is both industrial and political. Political strikes can themselves be helpful e.g. Weimar Republic saved by a political strike against the Kapp Putsch (He was writing in 1937). He also says that laws governing strikes are futile as they would just intensify the confrontation and would be ignored (No longer true- unions do not act in breach of court injunctions e.g. the BA strike of 2009).

• Traditionally viewed as an economic tool, striking is now recognised as a fundamental human right (London Underground Ltd v RMT [1996] ICR 170).

• Reasons for decline in industrial action:

  • Fewer trade union members today

  • Long periods of high unemployment during 80s and 90s decreased union power

  • Decline of militant industries- manufacturing, coal extraction etc

  • Impact of the law: trade unions are nowadays likely to comply with it

Keith Ewing, ‘Laws Against Strikes Revisited’, in Barnard, Deakin and Morris (eds), The Future of Labour Law (2004) 41:

• Strikes are at a historic low in the UK, as well as in most countries of Europe, North America and Australasia. Most strikes that do occur take place in the public sector.

• Hepple and Kahn-Freund identified the right to strike as serving an economic function: It allowed labour to apply an economic sanction in order to obtain better rights, and is necessary for collective bargaining (as Lord Wright noted in Harris Tweed v Veitch).

• Under the current law the right to strike only covers disputes between the union members and the employer on an employment-related subject (per Lord Bingham in Re P [2003] UKHL 8. Thus there would be no protection for workers striking in support/opposition to a political cause.

• If the rationale of the right to strike is to assist the workers in collective bargaining, then it appears rational to refuse the right to strike for the period where a collective agreement with DR mechanisms is in place.

• An alternative view is to see the right to strike as a human right. Art. 28 CFR (now in force under art. 6(1) TEU (post LT). It confers the right of workers and employers or their respective organisations to take collective action to defend their interests, including strike action. There are some important implications of seeing the right to strike as a human right.

  • Firstly, the right is vested in individuals, even if exercised collectively. However this doesn’t stop it being conferred on unions too e.g. under art 11 ECHR.

  • It’s a primary right (not parasitic on another process, as it is parasitic on right to collective bargaining under Hepple and Kahn Freund’s conception) and therefore doesn’t need to be limited as a secondary right is. It confers power on workers in the wider political community rather than just in the workplace. Thus it is limited in a different way i.e. by reference to the needs of society generally, such as protecting those affected by the strike.

  • The state would fall under an obligation to ensure that there aren’t any obstacles put in the way of the exercise of the right, such as penalties or dismissals/litigations from breach of employment contract.

• The right to strike may support other human rights e.g. freedom of expression, freedom of conscience, and freedom of association.

• The right to strike may also be used to support the HRs of others e.g. the refusal of broadcasting staff to show the matches from the world cup in SA in support of the rights of those being discriminated against.

• The constraints of the right to strike as a HR are looser than those of classical labour law, which viewed striking as parasitic on right to collective action

  • The ban on strikes for political reasons no longer applies, since the right to strike could be used to exercise freedom of expression.

  • The ban on strikes during the life of a contract (the peace obligation) is less certain, since there are debates about whether a contract can suspend human rights. However even if this were the case, a contract between TPs would not prevent a union from striking in support of one of those parties.

  • Duty to ballot members before a strike appears contrary to the idea of individual rights, since the individual’s rights would be contingent on the view of thousands of others.

• However there are restraints that are appropriate for a HR: if the strike would infringe others’ HRs e.g. freedom of the press, right to property, right to education (where teachers strike). Proportionality is generally used to resolve these conflicts. Ewing argues though that proportionality may allow too great inroads into the right to strike because of the courts’ discretion. Bullshit- the good thing about proportionality properly applied is that it doesn’t rely on discretion. He thinks the right to strike should not be limited unless the consequences would be ‘devastating.’ That just assumes that the right to strike is more important than countervailing rights, without saying why.

T Novitz, International and European Protection of the Right to Strike (2003) 39-88

2. Trade unions and strike organisers

Davies and Freedland, Labour Legislation and Public Policy, (1993) Chapter 9, ‘Reducing the Power of Trade Unions, 1979 - 1990'

Bill Wedderburn, Employment Rights in Britain and Europe, (1991) Chapter 10 ‘The Right to Strike: Is There a European Standard?’

A. Common Law Liabilities (in outline only)

Thomson v Deakin [1952] Ch. 646: P sacked a member of union 1. Union 1 managed to get the members of union 2, who worked for P’s suppliers, not to deliver supplies to P. As a result supplier S told P that it would be unable to fulfil its supply contract with P. P sought an injunction restraining both unions involved from procuring S to breach its contract with P (i.e. interference with contractual relations). CA refused the order, on the grounds that in order to be liable for an actionable interference with contractual relations by persuading the servants of one of the parties to the contract to break his contract of service with that party is confined to the case where it is clearly shown “first, that the person charged with actionable interference knew of the existence of the contract and intended to procure its breach; secondly, that the person so charged did definitely and unequivocally persuade, induce or procure the employees concerned to break their contracts of employment with the intent I have mentioned; thirdly, that the employees so persuaded, induced or procured did in fact break their contracts of employment; and, fourthly, that breach of the contract forming the alleged subject of interference ensued as a necessary consequence of the breaches by the employees concerned of their contracts of employment.” This was not the case here as the employees of S had only threatened to break their employment agreements (hadn’t yet since S capitulated), nor had union 1 procured the breach by union 2 (What? That’s ridiculous)- Jenkins LJ

Middlebrook Mushrooms v. TGWU [1993] ICR 612: P had a dispute with its union, D. D gave leaflets to members of the public outside supermarkets that sold P’s produce, urging them to boycott it. P sought an injunction asking for an injunction to prevent D from leafleting, on the grounds that it was trying to interfere with the contractual relations between P and the supermarket. CA refused the injunction on the grounds that the leaflets were directed at members of the public rather than the supermarket, so that any pressure on the supermarket to breach its contract with P would only be indirect.

Neill LJ: He uses the 4 step test from Thomson to test whether there has been a DIRECT tortious interference with contract (i.e. (1) TP knew of the contract and directly persuaded/procured etc the contract-breaker with the aim of getting it to breach the contract; (2) Dealings by the third party with the contract breaker which to the knowledge of the third party are inconsistent with the contract between the contract breaker and the person wronged; (3) An act by the third party with knowledge of the contract which if done by one of the parties to it would have been a breach of that contract; (4) The imposition by the third party, who has knowledge of the contract, of some physical restraint on one of the parties to the contract so as to make it impossible for him to perform it). NB the test in Thomson mentioned above is the test for indirect interference. There was no evidence that the leaflets had (or would have) any effect on the contract between the supermarket and P, since P’s produce wasn’t separately labelled. Nor were the union actually aware of the contract between P and the supermarket. Indirect interference with contractual relations is not actionable, unless unlawful means are used.

Merkur Island Shipping v Laughton [1983] ICR 490: (NB OVERRULED): P refused to comply with ITF’s demands to pay staff European rates, so ITF ‘blacked’ P’s ship, preventing it from leaving the harbour. P sought an injunction against the blacking action on the grounds of ‘unlawful interference with contractual performance by unlawful means’ (since P had a contract with X to charter the ship). HL granted the injunction, holding that this economic tort extended to the prevention of the due performance of a primary obligation in the contract,...